President William Ruto and some of his advisors (inset from left) Adan Mohamed, David Ndii, Henry Rotich and Mohamed Hassan.
Power, when unchecked, has a peculiar habit: it grows extra limbs. Not through constitutional amendment or public consent, but through quiet administrative invention. New offices. New advisors. New titles. All justified in the language of “efficiency” and “expertise,” yet existing entirely in the shadows of established institutions. It is against this ancient temptation of power to duplicate itself that the High Court of Kenya has now spoken, firmly, clearly, and with constitutional finality.
In a significant 2026 judgment, the High Court declared unconstitutional the creation of advisory offices and the appointment of 21 individuals to those positions by the Executive. The court did not hedge its words. The appointments were null and void ab initio, invalid from the very beginning, as though they had never existed. In legal terms, this is not a reprimand. It is an erasure.
At the heart of the ruling lies a simple but profound constitutional truth: public power must operate within defined structures, not alongside them. The court found that the process of creating and staffing these advisory offices bypassed the Public Service Commission (PSC), the very institution constitutionally mandated to oversee public appointments. In doing so, the Executive violated not only procedure but principle, undermining transparency, meritocracy, fiscal responsibility, and public participation.
President William Ruto assents to the Miscellaneous Amendments Bill of 2024 at State House, Nairobi.
This was not merely about jobs. It was about the architecture of the State. Kenya’s Constitution is built on a careful separation of roles, with independent offices acting as guardrails against the concentration of power. The PSC exists precisely to prevent personalised hiring sprees disguised as governance. When advisory offices are created outside this framework, staffed through opaque processes, and funded by the public purse, they amount to a “parallel public service”, unaccountable, unregulated, and unconstitutional.
The court saw this danger clearly. By quashing all administrative decisions connected to these offices since their creation in 2022, and by ordering an immediate halt to salary payments, the judgment sent a decisive message: illegality does not ripen with time. An unconstitutional act does not become lawful simply because it has been normalised.
This ruling did not emerge in isolation. It follows a consistent judicial trajectory in 2024 and 2025, where Kenyan courts repeatedly barred the Executive from creating parallel structures that usurp the mandates of independent bodies, including the PSC and the Office of the Auditor General. Taken together, these decisions reflect a judiciary increasingly alert to what might be called constitutional erosion by administrative creep.
Supporters of expansive advisory offices often argue that modern governance requires flexibility, that presidents and governors need trusted experts operating close to power. That argument is not without surface appeal. Indeed, Justice Lawrence Mugambi’s 2025 rulings acknowledged that advisors could, on occasion, attend Cabinet meetings to offer technical input. But the line the court has now drawn is crucial: occasional advice is not the same as permanent offices; technical input is not the same as employment; proximity to power is not the same as constitutional authority.
What this 2026 ruling decisively rejects is the conversion of “advice” into an alternative bureaucracy. The petition, championed by Katiba Institute and argued by lawyer Suyianka Lempaa, correctly framed the issue not as hostility to expertise but as fidelity to constitutional order. The work performed by these advisors, the court agreed, could and should, have been handled by mainstream public servants recruited through lawful processes. To do otherwise was to create an elite administrative layer answerable to individuals rather than institutions.
There is also a moral dimension here that Kenyans must not ignore. At a time of crushing public debt, austerity budgets, and widespread unemployment, the creation of well-paid advisory positions outside constitutional channels offends not only the law but public conscience. Fiscal responsibility is not an abstract value. It is about choices, who is paid, who is bypassed, and who bears the cost.
This judgment therefore speaks beyond the specifics of 21 appointments. It is a rebuke to a political culture that treats the state as a private estate to be reorganised at will. It reminds us that the Constitution is not an inconvenience to be engineered around, but a covenant to be honoured.
Milimani Law Courts in Nairobi.
Perhaps most importantly, the ruling restores something that has been steadily eroded in recent years: institutional dignity. The PSC is not decorative. It is not optional. Neither are other independent offices created to insulate governance from patronage and excess. When the Executive builds shadows beside these institutions, democracy itself is dimmed.
The High Court has now switched the lights back on. The question that remains is whether the political class will listen. Courts can declare, quash, and halt. But constitutionalism ultimately survives not on judgments alone, but on restraint on leaders choosing to govern within limits even when they have the power to test them.
This ruling offers Kenya a moment of clarity. Power may be creative, but the Constitution is definitive. And in a republic governed by law, shadows have no legal standing.
The writer is former Attorney-General and ex-Speaker of the National Assembly
